New Book—Lakefront: Public Trust and Private Rights in Chicago, by Joseph D. Kearney and Thomas W. Merrill

Post by Henry Smith I have just read and greatly enjoyed this wonderful new book by Joe Kearney and Tom Merrill about the shaping of the Chicago Lakefront. Sometimes this shaping is literal (or littoral?), because Kearney and Merrill embed a highly expert and engagingly written history of the legal controversies surrounding the Lakefront with … Read more

Gold, Goldberg, Kelly, Sherwin & Smith – The Oxford Handbook of the New Private Law

Post by Andrew Gold, John Goldberg, Daniel Kelly, Emily Sherwin, and Henry Smith We have some good news – The Oxford Handbook of the New Private Law has just been published (Oxford; Amazon)!  The Handbook offers exciting developments in scholarship dedicated to the study of private law in general, and to the New Private Law … Read more

Gold – The Right of Redress

Post by Andrew Gold I’m writing to put in a quick word about my new book, The Right of Redress – now published in the Oxford Legal Philosophy Series. (Here is a poster for the book, which includes a discount code.) Corrective justice theories of private law often focus on a wrongdoer’s obligation to fix … Read more

Retroactive Rights of Action

By Samuel Beswick, Assistant Professor, Peter A. Allard School of Law, The University of British Columbia I recently suggested on Balkinization that a storm seems to be brewing concerning the place of non-retroactivity doctrine (also called the doctrine of “prospective overruling”) in federal law. Non-retroactivity doctrine attempts to define the temporal scope of novel judgments … Read more

Obligations X ~ July 14–17, 2020 ~ Harvard Law School

We are pleased to announce the website launch for the Tenth Biennial Conference on the Law of Obligations: The conference is co-hosted by Harvard Law School and Melbourne Law School, and is being co-convened by John Goldberg, Andrew Robertson and Henry Smith.  The conference theme, Private Law Inside and Out, is intended to provoke … Read more

Call for Applications: Postdoctoral Fellowships in Private Law at Harvard Law School

UPDATE (5/11/2020): Due to a hiring freeze at Harvard University, there is no further information regarding the postdoctoral positions for The Project on the Foundations of Private Law. All inquiries should wait until further notice. — The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year … Read more

Canada’s Second Biennial Obligations Conference

By Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School On May 10 and 11, the University of New Brunswick Faculty of Law hosted the second biennial Canadian Law of Obligations (CLO) conference. Legal scholars from across Canada, as well as the United States and England, presented their works-in-progress on the theme of Obligations … Read more

Call for Applications: Postdoctoral Fellowships in Private Law at Harvard Law School

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2019 — in particular, it is seeking applicants for both the Postdoctoral Fellowship in Private Law and the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property. Application … Read more

Oxford Studies in Private Law Theory (Miller & Oberdiek eds.) — Call for Papers

Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.  Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law … Read more

Notes from the IP, Private Law, and Supreme Court Conference

Post by Patrick Goold

On March 10, the Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Program at the George Washington University Law School hosted the Intellectual Property, Private Law, and the Supreme Court conference. This day-long conference brought scholars, practitioners, and policy makers together to discuss the Supreme Court’s use of private law concepts in IP cases. The conference was a time to reflect on how the court has used principles from property, torts, contracts, equity and remedies, in IP law, and to think about how the court should use these principles in the future. This short blog post reports some of the day’s major themes.

Opening remarks were delivered by Commissioner F. Scott Kieff (International Trade Commission, on leave from his faculty position at George Washington Law).  Drawing from the examples of three prior cases (MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2015); Limelight Networks, Inc. v. Akamai Technologies, 134 S.Ct. 2111 (2015); and ClearCorrect Operating, LLC, v International Trade Commission, 819 F.3d 1334 (2016)), he explored some benefits and risks presented when individual litigants focus their arguments on private law concepts, and how this differs from the “too much versus too little protection” debate that commonly dominates IP law discussions.

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Intellectual Property, Private Law, and the Supreme Court — Conference Announcement

Post by Patrick Goold The Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Law Program at The George Washington University Law School invite you to attend Intellectual Property, Private Law, and the Supreme Court, a day-long conference in Washington, DC, on March 10. In the last decade, the … Read more

Patent Exhaustion and Private Law Goes to the Supreme Court — Patrick Goold

Post by Patrick Goold

Sir Edward Coke’s Institutes of the Lawes of England, first published in 1628, rarely influences the direction of modern U.S. patent law. But that might be about to change. This December, the Supreme Court of the United States granted certiorari in the case of Impression Products, Inc. v. Lexmark International, Inc., Supreme Court Docket No. 15-1189, concerning the scope of the patent exhaustion doctrine. The case will interest readers of this blog because it highlights the conceptual and doctrinal relationship between IP exhaustion and common law rules regarding restraints on alienation.

The case involves the ongoing battle over refurbished printer toner cartridges. Lexmark International makes printer toner cartridges, over which it owns a number of patents. These cartridges fall into two types: “Regular Cartridges” are sold at full price; while “Return Program Cartridges” are sold at a discount but come with a “single-use/no-resale” restriction, meaning the buyer may neither reuse nor resell the cartridge after the toner has run out. Lexmark sells these cartridges both domestically in the U.S. and abroad. In 2014, Lexmark sued Impression Products for patent infringement. Impression Products had previously: (1) bought domestically-sold Return Program Cartridges, modified by third parties to allow refilling, and resold them in the U.S.; and (2) imported and resold both Regular and Return Program Cartridges from foreign markets. Lexmark maintained both of these actions infringed their U.S. patent rights under § 271 of the Patent Act. Impression argued that both of these acts were non-infringing due to the Patent Exhaustion doctrine, which holds that “the initial authorized sale of a patented item terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008). John Golden has discussed the case in a prior New Private Law Blog post.

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Property and “The Right to Include” — Dan Kelly

Post by Dan Kelly

Donald Kochan (Chapman) recently published an essay, “Property as a Vehicle of Inclusion To Promote Human Sociability,” in JOTWELLThe Journal of Things We Like (Lots).  The essay reviews my article on The Right to Include.  In that article, I attempt to highlight the fact that private property allows owners not only to exclude but also to include others.  Inclusion may occur informally, contractually, or through a range of property forms, from easements and leases to common-interest communities and trusts.  While there are benefits from including others in property (think of Airbnb), there are also costs and potential pitfalls of inclusion—coordination difficulties, strategic behavior, and conflicts over use.  For this reason, I argue, the law enables owners to select from a variety of forms that provide different types of anti-opportunism devices, including mandatory rules, fiduciary duties, and supracompensatory remedies.  Ultimately, I contend that “ownership can be inclusive, rather than exclusive; it can facilitate cooperation, not just result in conflict; and it frequently promotes human sociability, not atomistic individualism.”

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Yale Law School’s Seminar in Private Law: The Role of Business Elites in Negotiating the End of Apartheid

Post by Sadie Blanchard, Research Fellow Yale Law School

Last week’s session of the Seminar in Private Law at Yale Law School considered the role of business elites in negotiating the end of the apartheid state in South Africa. Michael Young discussed the secret negotiations he convened in England during his tenure at a British mining firm operating in South Africa between the African National Congress in exile and Afrikaner elites. Itumeleng Makgetla presented a paper she is coauthoring with Ian Shapiro that applies game theory to the role of South African business leaders in negotiating the transition to democracy.

Young set the stage by recalling how dramatically international relations in the 1980s were shaped by the Cold War’s iron division of the world. South Africa’s social, economic, political, and security conditions were deteriorating: a state of emergency had been declared; unemployment was rising; and foreign investment was fleeing. Prime Minister P.W. Botha had begun running the country through a security bureaucracy, alienating even members of his own party. Despite the widely recognized instability and injustice of the regime, the United States and the United Kingdom were unwilling to offer diplomatic support to a transition because of the ANC’s communist affiliations within and outside South Africa.  

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Efficient Breach? — Greg Klass

Post by Greg Klass

I just read Robert Scott’s 2015 Boden Lecture at Marquette Law School, “Contract Design and the Shading Problem.” For anyone interested in what’s happening in the economic, instrumental and empirical analysis of business-to-business contracts, this is a great place to start.

There is a lot of interesting stuff in this piece, but here I want to mention only Scott’s argument that we’ve all been paying too much attention to the theory of efficient breach. This is a remarkable claim from the scholar who, together with Charles Goetz on 1977, coined the term “efficient breach,” and did as much as anyone to promote the theory early on. Scott now considers it unsatisfactory for an empirical reason: the theory does not describe most breaches. Rather than one party deciding it is in its interest to breach and pay damages, most breach of contract cases involve disputes—sincere or opportunistic—as to what the contract requires. The breach did not increase the size of the pie, but resulted from disagreement about how the pie was supposed to be divided. Theories that emphasize efficient breach therefore ignore what parties, at the time of contracting, really care about: avoiding disagreement in the gray zone, or what Scott calls “shading.” Scott concludes that, “while we meant well, Goetz and I are probably primarily responsible for leading a generation of scholars down the wrong garden path.”

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Property Scholarship Citation Counts — Eric Claeys

Post by Eric Claeys, George Mason University Earlier this year, Ted Sichelman blogged here about the most-cited real property articles published in the last 25 years.   Property scholar Stephen Clowney (Arkansas-Fayetteville) just conducted a more topical citation count, for the last 5 years of property scholarship.  He describes his methods in his posting (and … Read more

North American Workshop on Private Law Theory — Eric Claeys

Post by Eric Claeys, George Mason University

Before we get too far into November, some friend of this blog should say a word about the third North American Workshop on Private Law Theory.  (“NAWPLT”). NAWPLT is an annual workshop organized by Henry Smith, John Goldberg, Andrew Gold, Steve Smith and Paul Miller (McGill), and Dennis Klimchuk (Western Ontario).  The NAWPLT organizers usually select eight or nine papers, diversified to cover each of the four major fields of private law: tort, contract, property, and restitution-plus-remedies.  The papers are also diversified to show off a wide range of methodologies—analytical methods, different traditions of normative philosophy, and on occasion conceptually-respectful economic analysis.   I always enjoy going because NAWPLT is refreshing for me.  As an American scholar, most of the private law scholarship I encounter at conferences tends to be reform-oriented or economic in focus.  At NAWPLT, I get reminded that, in some parts of the English-speaking scholarly community, analytical and philosophical methods are taken seriously and applied well to private law.  

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When is a Covenant just a Covenant? Of Meso, Newman and Transactions with Patents – Jorge Contreras

Post by guest blogger Jorge Contreras, University of Utah College of Law.

A petition for certiorari was recently filed with the Supreme Court in Meso Scale Diagnostics LLC v. Roche Diagnostics GmbH (Del. 2015). In it, Petitioner poses the following question: “Whether a covenant, promise, or agreement not to sue for the infringement of a federal patent is a license of that patent as a matter of federal law.”

Though phrased simply, the question is an important one for reasons that extend well beyond the immediate dispute between the parties (which itself is too complex to describe here). Among other things, its answer has serious implications for the doctrine of patent exhaustion and the treatment of industry-wide commitments to limit the enforceability of patents in contexts such as standard-setting (commitments I have elsewhere termed “patent pledges”).

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What Commonwealth Jurists Can Learn from the New Private Law — Malcolm Lavoie

Post by guest blogger, Malcolm Lavoie, University of Alberta Faculty of Law

It is impossible to explain the “new private law” to non-American jurists without first describing a little bit of history: the rise of legal realism in the 20th century, with its hostility to formal doctrine, and the subsequent emphasis the American legal academy has placed on looking beyond private law doctrine to understand what is really going on, in economic, political, or other terms. As alluded to by Henry Smith in a recent post, the dominance of “external” approaches to law in private law scholarship has been a uniquely American phenomenon. In civil law jurisdictions, as well as in the Commonwealth, private law scholarship has retained its focus on legal doctrine, though it is sometimes complemented by functionalist approaches of various stripes. If the central aim of the “new private law” is to encourage approaches to scholarship that “take law seriously”, one might rightly ask what it has to offer to jurists from, say, England and the Commonwealth, where scholars never really stopped taking law seriously.

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The New Private Law – the View from Germany — Henry Smith

Post by Henry Smith

The Alster

This summer I spent a month visiting the Max Planck Institute for Foreign and International Private Law, in the group headed by Prof. Reinhard Zimmermann.  It was an enjoyable and productive visit, and it prompts me to raise a comparative issue on this blog.  In addition to the similarities and differences between common and civil law, which are sometimes overstated, there is a big difference between American and German private law scholarship, which is reflected in the law itself.  

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